C.W.P. No.17849 of 2004 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
C.W.P. No.17849 of 2004
Date of Decision: 13.08.2009
UCO Bank .....Petitioner
Versus
Sh. Naresh Kumar and another ....Respondents
Present: Mr. Sudhir Mittal, Advocate
for the petitioner.
Mr. O.P. Sharma, Advocate
for respondent No.1.
2. C.W.P. No.4504 of 2006
Naresh Kumar .....Petitioner
Versus
The Central Government Industrial Tribunal-cum-Labour Court and
another
….Respondents
Present: Mr. O.P. Sharma, Advocate
for the petitioner.
Mr. Sudhir Mittal, Advocate
for respondent No.2.
CORAM:HON’BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see
the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
-.-
K. KANNAN J.
1. C.W.P. No.17849 of 2004 and 4504 of 2006 are against the
same award, the former having been filed at the instance of the
management and the latter at the instance of the workman. By the
C.W.P. No.17849 of 2004 -2-
impugned award, the punishment of removal from service had been
modified and the Labour Court has substituted it by stoppage of four
increments for one year. The Labour Court had also found that the
departmental proceedings taken by the management resulted in
dismissal at two levels. One, by the Disciplinary Authority and
another by the Appellate Authority in the intra-departmental appeal
that the proceedings were fair and proper. The management’s writ
petition is against the reduction of punishment while the workman has
filed the writ petition challenging the correctness of the finding of the
Labour Court that the proceedings before the domestic Tribunal were
fair and proper.
2. The charges against the workman by the management-bank
consisted as follows:-
“1. That while working at Bhallan Branch on 05.11.1998,
you applied for one day’s Casual Leave for 06.11.1998
with the reason for sitting on Dharna at Zonal Office,
Chandigarh. The leave applied by you was not
sanctioned by the Manager and you were informed
accordingly.
2. That on 07.11.1998 at 11.00 A.M., you were vide
Bhallan Branch’s Offic Order No.23/98 dated
07.11.1998 asked to officiate vide Assistant Manager
in a Leave Vacancy. You neither accepted nor refused
the Offic Order but on the blank space in Office Order
itself wrote a long narration questioning the bona fides
of the Manager/Office Order and did not perform the
C.W.P. No.17849 of 2004 -3-duty(s) as directed by the Manager.
3. That on 04.12.1998 at about 4.00 P.M., Sh. P.S. Saini,
Assistant Manager of Bhallan Branch went inside the
Strong Room to get some documents from there, you
shut the Strong Room door from outside. In spite of his
frantic knockings on the door the same was not opened.
The door was opened by some one only after 15
minutes when Sh. P.S. Saini was almost on the verge of
being suffocated.
4. That on 04.12.1998 itself immediately after the
aforementioned incident, Bank’s very valued customer,
namely Sh. Sarvjit Singh came to the bank to deposit
Rs.1,00,000/- in his account and when Sh. P.S. Saini,
Assistant Manager was in the midst of counting cash,
you snatched the entire cash from him and threw the
notes helter-skelter and slapped Sh. P.S. Saini.”
5. In effect, the workman had been imputed with riotous and
disorderly behaviour at the premises of the Bank, willful damage to
the property of the Bank, willful subordination and disobedience of
the orders of the management and for misbehaviour towards
customers during the business hours, all of which being misconducts,
as per the relevant provisions of the Bipartite Settlement dated
19.10.1966 between the management and the workers’ union.
6. On the first charge that the workman had deliberately
absented himself from duty on 06.11.1998 and had carried out
corrections in the attendance register, the response by the workman
C.W.P. No.17849 of 2004 -4-
was that he had sought for leave on 05.11.1998 stating that he was
required to be absent for participation in a Dharna at Delhi and in the
leave letter, it had been endorsed that he shall resume his duty on
07.11.1998. According to him, this meant by implication that his
leave on 06.11.1998 had been granted. Referring to the alleged
corrections in the attendance register, his contention was that when he
reported to duty on 07.11.1998, he had entered the time of arrival
against date 06.11.1998 by mistake and when he found the mistake he
re-wrote against the date 07.11.1998 marked himself present and
entered in the column across the date 06.11.1998 that he had taken
casual leave. According to him, the management had subsequently
struck off the writings made by him and had written “absent”. It was
the management, which had carried out corrections in the attendance
register and not himself.
7. Learned counsel appearing for the management would point
out that the issue relating to the refusal of leave had been properly
dealt with by the Enquiry Officer as well as by the Appellate
Authority. The format of application for leave was in a standard
printed form and against his application, the leave had been endorsed
as denied and produced before the Enquiry Officer. Further in the
memo of requisition for leave also, the sanctioning officer had scored
out the request for leave on the ground that leave could not be granted
for the reason of participating in Dharna. The Appellate Court had
reasoned that his leave was not being sanctioned admitted of no doubt
that he was not being allowed the leave. Before me, it is argued that
even the reference to the date 07.11.1998 as a day when he could join
C.W.P. No.17849 of 2004 -5-
was not true and that date had been interpolated by the workman
himself. It must be noticed that such a contention was not raised
before the Enquiry Officer. I, therefore, agree with the contention on
behalf of the workman that if in the first sentence, there was a
reference to the fact that the sanction for leave was being denied and
in the last sentence it should read like that the workman should resume
his duty on 07.11.1998, it was possible for the workman to believe
that he was really being accorded the leave on 06.11.1998. The effect
of reference that the workman shall resume duty on 07.11.1998 was
never considered by the Enquiry Officer or the Appellate Authority.
The Labour Court had not also subjected the reasoning of the
domestic Tribunal to any serious scrutiny. It is also pointed out by the
learned counsel arguing for the workman that in the attendance
register, the endorsement “absent” has not been scored out anywhere
but only the endorsement made by the workman that he was on casual
leave on 06.11.1998 had been scored out. If the word “absent” had
already been entered by the management and the workman would be
imputed as having made the interpolation or correction, the word
absent must have been struck off. On the other hand, it is only the
entry of the workman that he was on casual leave which has been
scored out. This shows that the workman could not have carried out
any interpolation and the explanation given by him as regards the
entries in the attendance register gains credibility. The finding, in my
view, does not accord with evidence at all and therefore, although the
domestic Tribunal and the Labour Court found the charge No.1 to
have been proved, I set aside the finding.
C.W.P. No.17849 of 2004 -6-
8. As regards the second charge that the workman had refused
to officiate in duty as Assistant Manager on a particular day when the
officer was on leave, the contention of the workman was that there
was an express instruction that he shall not be permitted to officiate in
a higher post. Learned counsel appearing for the management points
out and in my view correctly that workman’s response to the memo for
officiation in a higher post was through a memo with an endorsement
taking up irrelevant facts, as to how on previous dates the Manager
had conducted himself. He had also challenged the duty assigned to
him by stating that the Workers Union had already decided not to take
up any such higher officiation roles. It was in the context of his refusal
to officiate, the management had passed an order that he shall not be
permitted to officiate in future for a period of six months. This
response from the management was more in the nature of reprisal or
an admonishment for an open defiance by the workman that he would
not officiate in a higher post. It was a clear case of insubordination
and the findings in that regard by the Labour Court are perfectly
justified.
9. The third charge was relatively a serious one. The
management had charged the workman as having locked up an
official, Sh. Saini in the Strong Room and in enquiry it was brought
out that he was seen proclaiming that he had taught the officer a
lesson and even went out of the Bank shouting to the attention of the
public making references upon caste and that all the persons
belonging to the caste would require to be properly dealt with. It was
also brought out in evidence before the Enquiry Officer that when Mr.
C.W.P. No.17849 of 2004 -7-
Saini had been later released from the Strong Room, he was given a
physical bashing by the workman by landing a fist blow on the nose.
The Manager had given evidence that on his return from outside, he
saw Mr. Saini totally shaken up and Mr. Saini had himself given
evidence that he was beaten and he was bleeding. This incident was
found to be true by the Enquiry Officer but the challenge against this
finding by learned counsel appearing for the workman was that the
Enquiry Officer had failed to examine the evidence of Satpal, a Clerk,
who had stated that no such incident took place in the Bank. It is not
as if no reference had been made by the Enquiry Officer but he had
observed that witness told him later individually that he deliberately
concealed the incident to support his comrade. It is strange that the
Enquiry Officer must make reference to an alleged private
conversation, which is not a part of the record. That portion of the
Enquiry Officer’s report is unacceptable but still I find that if a
Manager of the Bank as well as an official in a bank gave evidence
that he was physically assaulted, the evidence cannot be easily
brushed aside by the only fact that there was a denial by the workman.
Learned counsel appearing for the workman also contended that the
Strong Room itself was not accessible and it was not open because the
Manager had left at 2.30 P.M. on that day and he had the keys with
him. He came back only after the 4 O’clock and therefore, the incident
as alleged by the management could not be true. Learned counsel
appearing for the management would explain from the finding of the
Enquiry officer and as found by the Appellate Authority itself that
during the day time it will be open and there will be only key while
C.W.P. No.17849 of 2004 -8-
only at the time of closing after the banking hours, the second key will
also be used. According to him, only the Manager had left the Bank
but the Strong Room was still open and therefore, the case as
propounded by the workman was not true. This reasoning finds
reference in the Enquiry Officer’s report as well as in the Appellate
Authority’s order. The Court shall not reappraise evidence in a case
where some evidence had been placed before the Enquiry Officer that
was found to be credible enough to uphold the charge. It is not the
adequacy of evidence that shall be tested but the total absence thereof
which may vitiate a finding. I uphold the finding of the Enquiry
Officer and the Labour Court that charge No.3 had been fully
established.
10. As regards the charge that a customer had come to deposit
some cash and the Manager had also informed the workman that he
had prior information that a customer might arrive late and he had so
informed the workman when the manager was leaving the bank at 2.30
P.M. The customer did come a little late after the customer banking
hours, at the time when he was assaulting Mr. Saini and even the
currency which he had held in his hands had flown out of his hands in
the melee. The customer had gathered the cash and left without
depositing the money. Learned counsel appearing for the workman
would show that apart from alleged written statement of the customer
in writing narrating the incident, there was no other evidence before
the Enquiry Officer. The non-examination of the customer himself
was, according to him, material. If the incident has been spoken by
another witness and the fact that there was a written complaint itself
C.W.P. No.17849 of 2004 -9-
was sufficient for the Enquiry Officer to state that the incident was
true and the charge had been proved. It is not as if there was no
material at all for the Enquiry Officer or the Labour Court to come to
the conclusion that the charge had been proved.
11. The findings of the Enquiry Officer and the Appellate
Authority are fairly elaborate. The Labour Court had not dealt with
each charge but had made a general observation that it found that all
the procedural formalities attending on the enquiry, such as,
opportunity to the delinquent, the defence examination of witnesses
etc. had all been properly followed and that the proceedings had been
fair and proper. Since the learned counsel for the workman sought my
attention to each one of the charges and argued at considerable length,
I have addressed them charge-wise only to satisfy myself that even the
general observation of the Labour Court had a concrete basis. Except
the first charge, I am convinced that every other charge had been
clearly and substantially established.
12. As regards the punishment, the Labour Court found that the
punishment of removal from service was harsh and disproportionate to
the alleged misconduct especially when there were no charges of fraud
etc. As bad and serious as a charge of fraud is the charge of
insubordination and physical violence on a superior officer. The
intervention, which the Labour Court had made for the nature of
charges, which I have outlined could clearly show that it was not
simply a case where the Labour Court could have been interfered as
regards punishment. This is all the more so when the Labour Court
found that the enquiry before the Enquiry Officer had been proper and
C.W.P. No.17849 of 2004 -10-
fair and it found that all other charges had been established. The
nature of charges were definitely not being incidents of minor
misconducts. They were grave and serious and if the charges were
found to have been established, there is simply no scope for
interference.
13. Learned counsel appearing for the workman refers to the
decision of the Hon’ble Supreme Court in Jitendra Singh Rathor Vs.
Shri Baidyanath Ayurved Bhawan Ltd. and another AIR 1984 SC
976 that the interference by the High Cout in exercise of powers of
superintendence under Article 227 of the Constitution, they shall not
be exercised as a superior court of appeal. The High Court is not
entitled to exercise the powers of the Tribunal and substitute an award
in place of the one made by the Tribunal as in the case of appeal
where it lies to it. He also relied on a decision of a Division Bench of
this Hon’ble Court in PGI Chandigarh Vs. The Presiding Officer,
Labour Court, U.T., Chandigarh 1996 (6) SLR 757 where Labour
Court had modified the punishment by stoppage of four annual
increments and directed reinstatement. The High Court did not treat it
as perverse and did not interfere with the judgment. As against this,
the judgments cited by the learned counsel for the management refers
to decision of the Hon’ble Supreme Court in West Bokaro Colliery
(Tisco Ltd.) Vs. Ram Pravesh Singh (2008) 3 SCC 729 where the
Hon’ble Supreme Court held the sanctity of findings of the Tribunal
where there had been unequivoval evidence of misbehaviour towards
the superiors, such evidence rendered before the Tribunal could not
be discarded by the Labour Court or the Industrial Tribunal. The
C.W.P. No.17849 of 2004 -11-
decision of The Workmen of M/s Firestone Tyre and Rubber Co. of
India (Pvt.) Ltd. Vs. The Management and others (1973) 1 SCC 813
was perhaps the first major decision of the Hon’ble Supreme Court
that dealt with the extent of discretion under Section 11-A of the
Industrial Disputes Act and how it shall be exercised. It reminded the
Courts of the power of an Industrial Tribunal to interfere even in case
where the enquiry before the domestic Tribunal was found to be not
fair and proper and how the Labour Court itself could direct the
parties to adduce evidence regarding the facts that were required to be
proved before the Tribunal. The judgment also is an authority on the
aspect that a Tribunal would have the power at all times to reappraise
the whole evidence and satisfy itself whether the evidence establishes
the misconduct. It reminds the Tribunals also that if a proper enquiry
is made then the Tribunal will have to give cogent reasons for not
accepting the view of the employer and the employer will also escape
the charge of having acted arbitrarily or mala fide and it would
conduce to harmonious and healthy relationship betwen the employer
and the workman. In this case, I have no doubt in my mind that the
misconduct attributed against the workman and that stood proved
were very serious and if the management had decided to terminate his
services, it could not have been merely interfered on a subjective
finding that it was too harsh and disproportionate. It was harsh, it had
to be, since the misconduct was just as well deprecatory.
14. The award of the Labour Court, in so far as it reduces the
punishment is set aside. The writ petition filed by the workman in
C.W.P. No.4504 of 2006 is dismissed. The writ petition filed by the
C.W.P. No.17849 of 2004 -12-
management in C.W.P. No.17849 of 2004 challenging the reduction of
punishment from one of dismissal is allowed and the award of
punishment of dismissal made by the Disciplinary Authority is
restored. There shall be, however, no direction as to costs.
(K. KANNAN)
JUDGE
August 13 , 2009
Pankaj*